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Defend Fraud Charges

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In Canada, fraud offences are categorized based on the type of fraud committed as well as the value of the fraud. For example, the Criminal Code contains fraud offences including fraudulently selling real estate, transportation by fraud, identity theft, and falsifying employment records. Where the type of fraud committed is specific to one of these areas, or another specific offence in the Code, the accused will be charged with that specific offence. In other situations, where the fraudulent activity does not fit into one of these specific categories list in the Code, the accused will be charged with either fraud over $5,000 or fraud under $5,000, depending on the value of the fraud.

Donich Law has over 10 years of experience defending various types of fraud including insurance fraud, fraud over and under $5,000, identity theft, and falsifying employment records. In many cases, those who commit fraud will be charged with more than one offence. For example, an individual who uses a fake ID to cash a fraudulent cheque may be charged with fraud over or under $5,000 (depending on the value of the cheque) as well as identity theft for use of the fake ID.

In 2013, the Firm represented a client alleged to have attempted to deposit a fraudulent bank draft in the case of R. v. A.N. [2013]. The client was charged with several counts of fraud, uttering forged documents, and possession of property obtained by crime. The accused was reported to police after he attempted to deposit a bank draft issued by a publicly traded company into his personal bank account. It was alleged that the bank draft had not been issued to him, however upon further investigation the Firm discovered that the accused was totally unaware the funds were stolen. The Firm engaged in lengthy Crown pre-trial negotiations with the Crown, presenting the evidence discovered and secured a withdrawal of the charges.

In 2022, the Firm represented a client accused of using a fake citizenship card to cash a $40,000 money order in R. v. R.A. [2022]. The accused, a second time offender, was caught with a co-accused after employees at the store where they attempted to cash the money order called police. The accused had attended the cheque cashing establishment with the co-accused, indicating she would like to cash the money order to purchase property outside of Canada. The employee was suspicious of the ID card and the money order and began asking questions. Still unsure about the transaction, the employee requested that the accused came back to the store the following day to collect the money. The following day when the accused showed up, law enforcement arrested her and her accomplice, seizing their fake ID cards. The Firm completed a significant amount of up-front work and secured the withdrawal of three of the four charges against the accused. The Firm also avoided a jail sentence, which the Crown aggressively advocated for given the value of the money order and the fact that the accused was a second time offender.

Fraud is one of the most common criminal offences in Canada. A 2020 report from Statistics Canada found that in 2018 there were 559 reports of fraud per 100,000 people in the Kitchener-Cambridge-Waterloo metropolitan area. This rate was 47% higher than the general rate for Ontario and 39% higher than the Canadian rate. To combat this trend, the Waterloo Regional Police Service has compiled several resources designed to help educate the citizens of Kitchener on the topic of fraud and to promote prevention and awareness. Among these resources is a list of common ongoing scams.

Punishments for Fraud Depend on the Value of the Property

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In 2015, the Firm represented an individual who was terminated from her place of employment and arrested in R. v. S.C. [2015]. The accused, an employee at Home Sense, was charged after loss prevention staff uncovered a complex scheme to defraud the business out of over $60,000. After looking into the missing merchandise, loss prevention staff uncovered that the accused, another employee at the store and a family member of the accused had been pretending to scan items and then removing them from the store without paying. The Firm conducted an investigation of its own into the matter and found evidence to suggest the accused’s co-conspirator was the mastermind of the scheme. The Firm shifted blame onto the other suspects and resolved the matter without a criminal record.

Those who are convicted of fraud offences in Ontario and across Canada may face serious penalties. Fraud is a hybrid offence meaning the Crown can elect to prosecute the accused either by indictment or summary conviction. Which election they make will depend on a number of factors including the accused’s criminal history, when the alleged fraud occurred, and the nature and value of the fraud. More serious cases, or cases that occurred more than a year ago will be elected by indictment. Those prosecuted by indictment will face increased penalties upon conviction.

How to Defend Fraud Under $5000

In 2018, the Firm represented a client accused of participating in a high-level fraud and money laundering scheme in R. v. Z.U. [2018]. The accused came to the attention of law enforcement during a police sting involving law enforcement from both Canada and the U.S. Investigators determined that individuals in the U.S. were scamming elderly individuals out of cash, and then converting the cash into Gold Bullion. The Gold Bullion was then shipped over the border into Canada where it was to be sold on the Canadian market. The total value of the scheme topped $1 million dollars. Some of the evidence that was collected in the U.S. it was inadmissible under Canadian law. The Firm utilized the Canadian rules of evidence to exclude the evidence, resulting in the stay of nine fraud and money laundering charges.

In 2018, the Firm represented an individual accused of being involved in a large fraud scheme targeting retail stores throughout the GTA in R. v. K.L. [2015]. The accused was charged with several fraud offences as well as conspiracy charges and attempted fraud. The accused and a co-conspirator were caught by police after allegedly attending numerous retail stores, specifically Staples and Target stores, and stealing items. The accused would then return to the stores to return the stolen product for a cash refund. Loss prevention staff became suspicious of the activity and launched an investigation into the matter. The Firm utilized various procedural issues with the case, including the Crown being unable to call certain witnesses to resolve the matter by way of withdrawal for eight fraud charges.

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Frequently Asked Questions

What if Someone Commits a Fraud and had a Relationship of Trust or Authority with the Victim?

Under s. 380.1(1) of the Criminal Code there are certain factors, known as aggravating factors, that increase the sentence that an offender faces when convicted of fraud. There are two factors that deal with protecting vulnerable people in relationships of trust or authority. The first accounts for where offenders have a significant impact on victims given their personal circumstances like their age, health, and financial situation. The second considers whether an offender abused a position of influence they held in the community. As such, the abuse of relationships where there is an imbalance of power between those involved like doctor/caregiver-and-patient, employer-and-employee, or regulated professionals like real estate agents or lawyers and their clients can lead to offenders facing stricter penalties.

One example of this is the Provincial Court of British Columbia case of R. v. Jacobs, 2022 BXPC 230 (CanLII). In that case, an aboriginal offender was sentenced to four years imprisonment and was ordered to repay over $885,000 that the offender defrauded from the nation that they were a leader of. The money was meant for some of the most vulnerable members of the community and the offender took advantage of a lack of oversight of their activities to commit the crime. The severity of this offence and its predatory nature was the primary factor in the punishment issued.

How Does the Crown Prove Fraud in Kitchener?

There are three elements that the Crown must prove that are common to every type of offence. The Crown must first prove the identity of the accused, then the date and time of the incident, and then the jurisdiction of the offence. Jurisdiction refers to the issue that an accused must be tried in the correct place and correct court. For example, an adult offender on trial for fraud in Kitchener should be tried in the appropriate court in Kitchener.

The Crown must then prove elements that are specific to fraud offences based on the wording of the offence contained within s. 380(1) of the Code. The Crown must prove that the victim owned the subject of the fraud, whether it be money or property and the value of that good. It must then be proven that the accused took that thing from the victim or put them at risk of losing it. This is established by showing if any false representations were made that successfully convinced the victim to give up the valuable. Finally, for a fraud to be committed, the transaction must involve the accused knowingly using deceit or trickery to part the victim from their property. If all these elements can be proven beyond a reasonable doubt, the accused will be convicted of fraud.

Can the Victim Use the Conviction to Sue for the Value of the Fraud?

A victim cannot sue an offender in a civil court to get an order to repay the value of a fraud if the offender was convicted, but the judge did not issue a restitution order. A victim can consult with the Crown prior to the sentencing of the offender and express their desire for restitution. The Crown and judge will usually follow such a request. If an order is not made, a civil court will not extend its authority into the matter.

Criminal courts will not arrange for the enforcement of an order. They will simply impose further penalties such as imprisonment on the offender if they fail to repay the amount in the time specified by the order. However, a victim can sue the offender to have an existing restitution order enforced. If the victim can prove the existence of the order, that satisfies the burden of proof required for civil proceedings. Arrangements will then be made with the offender’s employer to garnish a portion of their wages and pay that to the victim until the restitution has been completed.

Can Someone Travel Internationally After Being Convicted of Fraud?

If someone in Kitchener who was convicted of fraud is planning an international trip, their conviction may complicate their plans. Each country reserves the right to refuse entry at customs to any person with a criminal record. Depending on the circumstances of the fraud the traveller committed, they may be refused entry. Generally, fraud is a serious criminal offence that, unlike many others, is not impacted by national borders. This may impact the decision to admit a person to another country more than some other types of offences.

Given that the United States is the most common international destination for Canadian travellers, people with a criminal record should know that admittance to the US is granted on a case-by-case basis. If someone has previously been to the United States while having a criminal record, that does not mean they will not be refused entry in the future. To help avoid any potential issue, a traveler can always apply to US Customs and Border Protection for advance permission to enter the county.

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Recent Cases

R. Vanbuskirk, 2022 BCPC 66

Another case from the Provincial Court of British Columbia demonstrates how the law deals with fraud in the context of relationships of trust. The offender was convicted of fraud over $5,000 and sentenced to 36 months in prison and ordered to pay restitution. The offence involved the offender convincing their wife to transfer over $30,000 to their account to pay for legal services and counseling for a drug addiction. In reality, the funds were used to finance the offender’s addiction. As a result of the fraud, the wife had to enter bankruptcy.

The judge made note of some important factors impacting sentencing options available in this case, including the relevance of the offender’s criminal record, which included a previous fraud charge. “I agree that probation can be very useful for some offenders, but only if the offender engages actively with his probation officer and participates in the various programs which are available through Community Corrections. Mr. Vanbuskirk failed to do that when a term of probation was imposed as part of his sentence for defrauding the Workers’ Compensation Board. His record of breaches of probation and failures to attend court as required leave little basis for optimism that he would participate constructively in any program to which he might now be referred by a probation officer.” [at para 15]

R. v. Durant, 2021 ABPC 79

The Provincial Court of Alberta case of R. v. Durant demonstrates that the abuse of a relationship of trust is not the only determining factor for sentencing in a case. Here, the offender was convicted of fraud over $5,000 after being hired by a small restaurant as a chef. They were given a debit card with access to the restaurant’s account to purchase supplies, but the offender used it for their own benefit and made 112 transactions valuing over $7,000. The offender was issued a nine-month conditional sentence with 12 months of probation.

The offender was able to lessen the sentence they received by demonstrating sincere remorse and making the effort to rehabilitate themselves on their own initiative. The offender paid back the amount of the fraud without a restitution order being made and voluntarily entered a treatment program for their drug addiction. [at para 31] This demonstrates how the Canadian criminal justice system focuses on more than punishment and seeks the best balance between taking a strong stance against crime and allowing the offenders the opportunity to learn from their mistakes.

R. v. Fairrae, 2021 NSPC 12

The Provincial Court of Nova Scotia case of R. v. Fairrae shows how the offence of fraud has adapted to modern technology. The offender was convicted of three counts of fraud, one of which was valued over $5,000. The charges came after the offender assumed an online persona and formed a relationship with three different women. Once their trust was gained, the offender had the victims provide cheques that were then cashed. When the victims sought repayment, they found there were insufficient funds in the offender’s account. On these facts the offender was sentenced to 220 days imprisonment, eighteen months’ probation and a restitution order was issued.

As in Vanbuskirk, the offender had a criminal record including previous fraud charges. Given that the circumstances of that offence were almost identical to the offence at issue, the judge imposed the punishment set out above. “The August 2018 fraud involved a friend and facts eerily similar to those before the Court today. The February 2019 threat involved that same woman and arose when she tried to get her money back. The February 2019 fraud involved a woman Mr. Fairrae met on Tinder and to whom he provided a false name. She was threatened and deposited 14 cheques suffering a $2,700.00 personal loss. The August 2019 perjury charge arose when Mr. Fairrae testified at a bail hearing and told the presiding judge, he was employed full time at a named company. Police checks determined he was not employed with the stated company in any capacity.” [at para 20]

About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.